These Terms of Use (“Policy”) set out terms with which you must comply when using the cloud-based platform solution currently operated by Siemens Energy under the name Innovation Orbit (“Platform”). “You” or “User” refers to an employee of a company or organization who is not an employee or contractor of Siemens Energy or its Affiliate.

General

1.1 Acceptance of the Policy. User seeks access to the Platform on behalf of User’s business or organization. User’s use of the Platform constitutes User’s acceptance of this Policy, all policies referenced herein, and all applicable laws, regulations and executive orders. 

1.2 Compliance with this Policy. You shall comply with, and, if you are an organization, shall cause Your Users to comply with, this Policy. If You or any of Your Users violate this Policy or authorize or help others to do so, we, or a third party on our request, may suspend or terminate your use of the Platform-related services, remove Data that is in breach of this Policy, and/or pursue legal action against You and/or Your business or organization.

1.3 Purpose. The Platform intends to provide You with an opportunity to advertise or to market Your product, prototype, etc. The Platform also offers the opportunity to present topics for possible cooperation (e.g. in the area of development and testing). The information and data available on the Platform are generally intended for internal (non-confidential) use at Siemens Energy. Towards this end, You may upload Your information to the Platform. 

Information shared on the Platform is accessible to all Siemens Energy employees and potentially external contractors. Siemens Energy does not guarantee the confidentiality of any Data You or Your Users upload to the Platform. Therefore, you acknowledge and agree that: 

(i) YOU ARE RESPONSIBLE FOR ALL USE YOU MAKE OF THE PLATFORM AND ANY ACTIVITY OCCURRING USING YOUR PLATFORM ACCESS CREDENTIALS; AND 

(ii) YOU AGREE TO NOT UPLOAD AND TO PREVENT YOUR USERS FROM UPLOADING TO THE PLATFORM CONFIDENTIAL OR PROPRIETARY DATA (INCLUDING BUT NOT LIMITED TO TRADE SECRETS, SOURCE CODE, BACKGROUND KNOW-HOW, UNPUBLISHED PATENT APPLICATIONS OR ANY OTHER INFORMATION THAT SHOULD NOT BE VISIBLE TO POTENTIALLY THOUSANDS OF USERS WITH ACCESS TO THE PLATFORM). UPLOADED DATA SHOULD BE LIMITED TO INFORMATION THAT IS NOT CONFIDENTIAL OR RESTRICTED.

1.4 Not binding information. You agree that neither Your use of the Platform nor the provision of the Platform by Siemens Energy constitutes an offer or acceptance for the conclusion of a contract on the procurement/sale of products. Should the Platform include Siemens Energy specifications, pricing or suggested terms, these are not binding on Siemens Energy or its Affiliates. This Policy does not amend any written agreements between You or Your business or organization on the one hand, and Siemens Energy or its Affiliate(s) on the other hand.  

1.5 Reporting. If You become aware of any violation of this Policy, You will immediately notify Siemens Energy and provide us with assistance, as requested by us, to stop, mitigate or remedy the violation. To report any violation of this Policy, please contact us via:  innovation.orbit.team@siemens-energy.com

1.6 Liability. Siemens Energy does not guarantee that the Platform or any Data posted thereon, by any person other than You, will be free from viruses and/or other code that may have contaminating or destructive elements, and is not responsible for any damage caused by viruses or such other code. You acknowledge that there are inherent risks associated with information transmission over the Internet and the technical processes involved in such transmissions. Therefore, Siemens Energy is not responsible for any breach of security of the Platform or loss of Data for any reason. Siemens Energy disclaims any and all warranties (including implied warranties) and doesn´t assume any liability for any information and Data provided by You or Your Users on the Platform. Further Siemens Energy and its Affiliates disclaim all responsibility for any loss or claim of any kind resulting from, arising out of, or any way related to (i) the unavailability of the Platform, (ii) any use of any equipment or software in connection with the Platform,  (iii) accuracy of the Platform, content of Your Data, thereon or any reliance on the information contained in the Platform and/or performance of User’s browser with the Platform,  (iv) infringement arising from any source; (v) loss, removal or use of Your Data, or (vi) for any type of indirect, special, liquidated, punitive, exemplary, collateral, incidental or consequential damages, even if Siemens Energy has been advised of the possibility thereof.

1.7 Indemnity. USER AND ITS BUSINESS OR ORGANIZATION SHALL INDEMNIFY AND HOLD HARMLESS SIEMENS ENERGY AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS (COLLECTIVELY “INDEMNITEES”) FROM AND AGAINST CLAIMS, COSTS, DAMAGES, LOSSES, LAWSUITS, LIABILITIES AND EXPENSES (INCLUDING REASONABLE ATTORNEYS FEES) (COLLECTIVELY “CLAIM”) ARISING OUT OF OR IN CONNECTION WITH:

(i) YOUR USE OF THE PLATFORM, THE USE OF YOUR PLATFORM ACCESS CREDENTIALS, OR YOUR DATA,

(ii) A CLAIM THAT YOU, YOUR USER(S), OR YOUR DATA INFRINGED ANY THIRD PARTY OR SIEMENS ENERGY’S INTELLECTUAL PROPERTY RIGHT, OR CAUSED HARM OR DAMAGES UNDER TORT, STRICT LIABILITY OR ANY OTHER LEGAL THEORY,

(iii) YOUR BREACH OF THIS POLICY,

(iv) A VIOLATION OF APPLICABLE LAW BY YOU, YOUR USER(S), BUSINESS OR ORGANIZATION, 

(v) YOUR NEGLIGENCE, OR VIOLATION OF THE PRIVACY RIGHTS OF INDIVIDUAL(S), OR 

(vi) YOUR NEGLIGENCE or INTENTIONAL ACTS OR WANTON AND WILLFUL MISCONDUCT.  

YOU SHALL NOT SETTLE A CLAIM AGAINST INDEMNITEES WITHOUT THE PRIOR WRITTEN CONSENT OF SIEMENS ENERGY’S ATTORNEYS.

2. Export Control. 

2.1 Compliance with Laws.  Uploaded Data may be visible to users of the Platform globally. You agree to comply with all applicable sanctions (including embargoes) and (re-)export control laws and regulations including (to the extent applicable) those of the Federal Republic of Germany, the European Union and the United States of America (collectively “Export and Sanctions Laws”) prior to transmitting, sending or exporting your Data. You warrant that Data you upload to the Platform is not governed by U.S. Department of Defense regulations including but not limited to the U.S. Defense Federal Acquisition Regulations Supplement.

2.2 Your Obligations. You are obliged to confirm your Data is neither classified under EU / German (AL = N) nor US export control regulations (“not subject to EAR” [ECCN = N] or, if subject to EAR, not classified under CCL [ECCN = EAR99]). 

2.3 Information Requirements. If required to enable authorities or SIEMENS ENERGY to conduct checks to ensure compliance with Export and Sanctions Laws, you, upon request by Siemens Energy, shall promptly provide Siemens Energy with all information pertaining to the particular technology, commodity or software.  

2.4 Right to Restrict Access and/or Withhold Performance.  You acknowledge that Siemens Energy shall not be obligated to perform under the Policy if such performance is prevented by any impediments arising out of Export and Sanctions Laws or customs requirements. You further acknowledge that (a) access to the Platform is granted at Siemens Energy’s sole discretion and (b) Siemens Energy may be obliged under Export and Sanctions Laws applicable to Siemens Energy to limit or suspend access by You and/or Users to the Platform.

3. Intellectual Property Rights

3.1 Non-Exclusive Data. Notwithstanding anything herein to the contrary, You recognize that other persons may have provided Siemens Energy, or made public, or may in the future submit, or make public, materials that are the same or similar to Your Data, Your or Your User(s) upload to the Platform including but not limited to any Product, prototype, etc., or that Siemens Energy may develop, already has developed or will develop the same or similar product or prototype in the future.  

3.2 Free Right of Use for SIEMENS ENERGY. You acknowledge and agree that Siemens Energy and its Affiliates shall have the right to use all Data uploaded to the Platform, and that neither You nor any third party shall be entitled to any compensation arising from Siemens Energy´s or its Affiliates use of Your Data. 

For the avoidance of doubt, unless you clearly indicate in the data uploaded to the Platform and provide evidence that you have obtained a patent or similar protection under applicable intellectual property laws, Siemens Energy is free to use the information provided on the Platform.

3.3 Don’t provide Inventions. Under no circumstances should you upload confidential information about inventions and/or unpublished patent applications to the Platform. References to published patent applications or granted patents may be provided by including the essential information on the application (file number, publication number, filing date) or patent (patent number, grant date) with the competent patent office in addition to non-confidential information about the invention.

3.4 Method to share Information about Inventions. If you wish to upload Data that could possibly form the basis of a patent or other intellectual property right, it is in any case requested that you first file a corresponding application with a competent patent office. Otherwise, you expressly waive your potential rights against Siemens Energy and its customers.

3.5 Proprietary of Siemens Energy. User acknowledges that the Platform is confidential or proprietary to Siemens Energy, its licensor(s), or service provider(s). Except for Siemens Energy granting You or Your Users permission to upload Your information to the Platform, neither You nor Your Users are granted any other right, license, title or interest to the Platform, any logos or content thereon. 

4. Use of Data

4.1 Retention Period. Siemens Energy may retain all Data uploaded to the Platform for an indefinite period. All data on the Platform may be subject to collection, review or use by Siemens Energy in legal or compliance matters. 

Personal Data will be stored as long as required for the purpose or to the extent legally required.

4.2 No Illegal, Harmful, or Offensive Use or Data. You shall not use, or encourage, promote, facilitate, or instruct others to use, the Platform for any illegal, harmful, or offensive use. Data must not be illegal, harmful, offensive nor breach any confidentiality obligations You or Your organization may have with third parties. In particular, Your use of the Platform shall not: 

(i) be in violation of any Laws or rights of others; 

(ii) be harmful to others, Siemens Energy’s operations or reputation, including offering or disseminating fraudulent goods, services, schemes, or promotions, make-money-fast schemes, Ponzi or pyramid schemes, phishing, pharming, or other deceptive practices;

(iii) infringe or misappropriate the intellectual property or proprietary rights of Siemens Energy or others; or

(iv) be defamatory, obscene, abusive, invasive of privacy, or otherwise objectionable. 

5. Use of the Platform

5.1 No Abusive Use. User prohibited activities include but are not limited to:

(i) interference with the proper functioning of any of Siemens Energy´s systems, including any deliberate attempt to overload a system by mail bombing, news bombing, broadcast attacks, or flooding techniques; and

(ii) engagement in any activity or modification or attempt to modify the Platform in such a way as to introduce a vulnerability or otherwise undermine the security or negatively impact the Platform.

5.2 No Security Violations. You shall:

(i) before accessing the Platform, during use, and when transferring Data, take all reasonable precautions against security attacks on Your system, including appropriate measures to prevent viruses, trojan horses or other malware or programs that may damage software or hardware;

(ii) not interfere with or disrupt the integrity or performance of the Platform or other equipment or networks connected to the Platform, and in particular not transmit any Data containing viruses, trojan horses, or other malware or programs that may damage software or hardware;

(iii) not use the Platform in a way that could damage, disable, overburden, impair or compromise any of Siemens Energy´s systems or their security or interfere with other Users of the Platform;

(iv) not perform any penetration test of or on the Platform; 

(v) not connect devices to the Platform that do not comply with state-of-the-art security policies (e.g., password protection, virus protection update and patch level); and

6. Monitoring and Enforcement

6.1 Monitoring. Siemens Energy reserves the right, but does not assume the obligation, to investigate any violation of this Policy or misuse of the Platform at its sole discretion. Siemens Energy may remove, disable access to, or modify Data that potentially violates this Policy or any other agreement Siemens Energy has with You.

6.2 Enforcement. Siemens Energy may report any activity that we suspect to violate any Laws to law enforcement officials, regulators, or other appropriate third parties. Siemens Energy may cooperate with appropriate law enforcement agencies, regulators, or other appropriate third parties to help with the investigation and prosecution of illegal conduct by providing network and systems information related to alleged violations of this Policy.

7. Definitions

7.1 “Affiliate” means a corporation or other legal entity, directly or indirectly, owned or controlled by, or owning or controlling or under common control with one of the parties where “control” shall mean to have, directly or indirectly, the power to direct or cause the direction of the management and policies of a corporation or other entity.

7.2 “Data” means any information, program, software, application, code in any form, script, library, or data that is entered or uploaded onto, stored on, or transferred to the Platform in connection with You or any User’s use of Platform- under Your account. 

7.3 “Laws” means any federal, state or local law, rule, regulation, court or executive order of a government with jurisdiction over Siemens Energy and the Platform. Laws may include, without limitation, co-determination rights of the works council, if applicable, data privacy, telecommunication, energy law, cybersecurity law and/or export control.

7.4 “Personal Data” means any information to identify an individual directly or indirectly. 

7.5 “Products” means any of Your or Your business or organization’s patented or otherwise legally protected products and services which are in your sales portfolio and which are manufactured by You or which You make a third party manufacture for You. 

7.6 “Prototype” means a first model of a Product and services designed, manufactured or combined by You, which is currently not manufactured on a large scale but which You intend to manufacture or have manufactured in due time. 

8. Jurisdiction and Dispute Settlement

8.1 DE Law. Except as set forth in 8.2 for your access from the US, Your use of the Platform is governed by German law. The ordinary courts located in Munich shall be exclusively competent for the resolution of any dispute arising out of or in connection with the use of the Platform to the largest extent permissible by law.

8.2 U.S. Arbitration. In the United States, You as an individual and on behalf of Your business or organization, agree that any civil dispute, claim or controversy arising out of or relating to this Policy, Your access to or use of the Platform, shall be settled as between Siemens Energy and You by binding arbitration and not in a court of law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the AAA’s Commercial Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this Policy.  A judgment on the award rendered by the arbitrator may be entered in a U.S. court of competent jurisdiction. You, on your behalf and on behalf of Your business or organization and Siemens Energy are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. You and Siemens Energy are, instead, electing to have claims and disputes between them resolved by arbitration. YOU AND SIEMENS ENERGY WAIVE ALL RIGHTS TO A JURY TRIAL IN EVERY INSTANCE. You and Siemens Energy agree that the arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes relating to the interpretation, applicability, enforceability or formation of this arbitration agreement, including any claim that all or any part of this arbitration clause is void or voidable. The arbitrator shall also be responsible for determining all threshold arbitrability issues. The dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions, award monetary damage, grant any non-monetary remedy or relief under law, the AAA Rules, and the Policy. The AAA arbitrator has the same authority to award relief on an individual basis that a judge in a U.S. court of law would have. The award of the arbitrator is final and binding upon You, Your business or organization and Siemens. The U.S. Federal Arbitration Act (“FAA”) and federal arbitration law apply hereto this Policy and, if the FAA or AAA Rules are found to not apply to any issue arising under this Policy or its enforcement, then that issue shall be resolved under the laws of the state of New York and in a federal or state court in the city of New York, NY. 

 

9. Miscellaneous 

9.1 Amendments. Siemens Energy may modify the Platform and/or this Policy any time at its sole discretion, and by accessing the Platform, User accepts the current version of the Policy and Platform. 

9.2 Suspension or Termination of access. Your access to and use of the Platform, at any time in Siemens Energy´s sole discretion, without any liability whatsoever.

9.3 Representation. In the case of businesses or organizations that are represented by or affiliated with You, such business or organizations shall assume that You have appropriate knowledge and act accordingly on its or their behalf.

9.4 No Waiver. Should User or Siemens Energy or its Affiliates fail to exercise or enforce any provision of this Policy, or should they waive any rights in respect thereto, such waiver or failure shall not be construed as constituting a continuing waiver or waiver of any other right.

9.5 Entire Agreement. This Policy, as it may be amended from time to time in the sole discretion of Siemens Energy, and all policies referred to herein constitute the entire agreement between User and Siemens Energy, and supersedes all prior or contemporaneous writings, discussions, agreements, and understandings of any kind, with respect to the subject matter of the Policy.

9.6 Severability. If any provision of the Policy shall be held to be unenforceable by any court of competent jurisdiction, the other provisions will remain in full force and effect. Any provision held to be invalid or unenforceable only in part or degree shall remain in full force and effect to the extent not held invalid or unenforceable.

9.7 Survival. Section 1.6 (Liability), Section 1.7(Indemnity), Section 4.1 (Retention), Section 3 (Intellectual Property Rights), Section 8 (Jurisdiction and Dispute Settlement) and Section 9 (Miscellaneous) shall survive termination or expiration of this Policy and/or your use of the Platform.